HHS Q&As Address Nondiscrimination Rules for Health Programs and Activities under the ACA | Practical Law

HHS Q&As Address Nondiscrimination Rules for Health Programs and Activities under the ACA | Practical Law

On August 6, 2012, the Department of Health and Human Services (HHS) issued questions and answers (Q&As) addressing Section 1557 of the Patient Protection and Affordable Care Act (PPACA). Among other things, the Q&As state that Section 1557 prohibits discrimination on the basis of gender identity and sex stereotyping, and that transition related surgery is not required to be covered by health insurers. However, these HHS Q&As were later removed from the government's website.

HHS Q&As Address Nondiscrimination Rules for Health Programs and Activities under the ACA

by PLC Employee Benefits & Executive Compensation
Published on 07 Aug 2012 • USA (National/Federal)
On August 6, 2012, the Department of Health and Human Services (HHS) issued questions and answers (Q&As) addressing Section 1557 of the Patient Protection and Affordable Care Act (PPACA). Among other things, the Q&As state that Section 1557 prohibits discrimination on the basis of gender identity and sex stereotyping, and that transition related surgery is not required to be covered by health insurers. However, these HHS Q&As were later removed from the government's website.
On August 6, 2012, HHS issued seven questions and answers (Q&As) addressing nondiscrimination rules under the Affordable Care Act (ACA) that apply to health programs and activities receiving federal financial assistance.
Caution: As of February 2014, and perhaps earlier, the guidance on which this update is based appears to have been removed from the HHS website.
The Q&As address Section 1557 of the Patient Protection and Affordable Care Act (Section 1557), which prohibits individuals from being excluded from participation in, being denied the benefits of, or being subject to discrimination under any health program or activity that receives federal financial assistance (including credits, subsidies or insurance contracts) based on grounds prohibited under:
  • Title VI of the Civil Rights Act of 1964 (race, color or national origin).
  • Title IX of the Education Amendments of 1972 (sex).
  • The Age Discrimination Act of 1975 (age).
  • Section 504 of the Rehabilitation Act of 1973 (disability).
The Q&As state that:
  • Section 1557 prohibits discrimination on the basis of gender identity and sex stereotyping.
  • "Transition related surgery" is not required to be covered by health insurers (the Q&As do not define this term for purposes of Section 1557).
  • The Office for Civil Rights (OCR) has enforcement authority for health programs and activities that receive federal financial assistance from HHS.
  • If individuals claim that they are not getting health care because, for example, of how they look, they can file a complaint.
  • There will not be a regulation under Section 1557 defining what is masculine or feminine.
Individuals who think their rights have been violated can learn how to file a complaint on the OCR website.

Practical Implications

The Section 1557 nondiscrimination rules have received little attention since they were enacted as part of the ACA in 2010. Significant questions regarding these rules remain unanswered, including the meaning of "health program or activity" subject to the rules. These issues will likely be addressed in HHS regulations implementing Section 1557, which:
  • Were authorized under the ACA.
  • HHS plans to propose in the future.
For a discussion of this nondiscrimination requirement under the ACA, see the Practice Note, Affordable Care Act (ACA) Overview.